Tuesday, November 06, 2018

In the Short Run, Are We Also All Dead?

by Neil H. Buchanan

John Maynard Keynes famously wrote: "In the long run we are all dead." Although there have been plenty of bad-faith misreadings of that quote, the correct reading is actually quite simple. Keynes rejected the idea of causing millions of people to suffer in the here and now in the possibly vain hope that some economist's model of "long-run equilibrium" correctly predicts that such sacrifices (always to be paid by other people, of course) will pay huge dividends in the future.

More to the point, we cannot make our way to the long run if we all die in the short run.

In a sense, many of the arguments against Donald Trump have been arguments about a somewhat distant and uncertain future. Thus, my Verdict column on June 2, 2016 asked: "Is This the Beginning of the End of Constitutional Democracy in the U.S.?" My concern was not with the decades- or generations-long version of the long run that worried Keynes (although he was also worried about inflicting pain for years at a time with the promise of prosperity just around the corner), but it was still a dystopian prediction of something that might or might not happen and that would in any event take some time to play out.

In my latest Verdict column, published yesterday, I confront the reality that we have already reached the point where the dangers of Trump have become all too real and are no longer speculative. If the Democrats do not have a good day today, it might well be the end of the line for the American democratic experiment.

Yes, that sounds apocalyptic, yet it is difficult not to fear the worst. And it could still be awful even if the Republicans do lose today. Stay with me here.

Although the vast majority of people who were paying attention two years ago were certain that Trump would be a horrible president, there was at least a tiny possibility that he could have suddenly taken things seriously and become a leader. And if he instead did what people feared he would do, even many on the left assumed that enough Republicans in Congress were, deep in their hearts, true patriots that Trump would be contained and, if necessary, quickly removed from office.

That is why the stakes are now so immediate. There is now zero chance that the Republicans will stop Trump from doing his worst, and if they hold both houses of Congress and key governors' mansions today, they will set about doing everything they can to turn future elections into empty farces.

That is one possible short run: Republicans win and then immediately set about to complete their project of dismantling checks and balances, strangling free elections, ending independent law enforcement and intelligence gathering, turning the press into agents of government propaganda, and attacking free academic inquiry.

The problem is that the other possible short run looks rather awful, too. Washington Post columnist Paul Waldman points out that the Republicans will "lurch even further to the right," both because they will have lost their slightly-less-reactionary members and because Trump will conclude that he can win in 2020 by becoming even meaner and uglier than he was in 2016 or this year.

Meanwhile, New York Times columnist Paul Krugman works from the premise underlying an argument that I and others have been making -- that Trump might never leave office, because he and the Republicans will simply ignore the Constitution in order to stay in power -- and notes that we can with great certainty expect Trump and the Republicans to make all kinds of moves that ought to be unthinkable, but that they will readily embrace, in order to fight back against having lost.

Krugman warns that "anyone expecting Republicans to accept the result with good grace hasn’t
been paying attention. Remember, Donald Trump claimed — falsely, of
course — that millions of immigrants voted illegally in an election he won. Imagine what he’ll say if he loses, and what his supporters will do in response."

And right on cue, the top headline on The Post's home page as I write these words reads: "Without evidence, Trump and Sessions warn of voter fraud in Tuesday’s elections." Recall that Trump, during the final presidential debate in 2016, refused to say that he would accept the results of the election if he lost.

It is difficult to know exactly how he would have reacted to a loss in 2016, but it is highly likely that his most devoted fans would have taken to the streets, including his "Second Amendment people." Now, wielding the power of the presidency and backed by a fully radicalized Republican caucus (with supposed "grownups" like Lindsey Graham having gone full Trump, and supposed near-moderates like Marco Rubio and Susan Collins reliably going along), what will Trump do if they lose?

Most obviously, we can expect a barrage of lawsuits challenging every key Democratic win, with claims of voter fraud, election hacking (a specious accusation that the Republican candidate for governor of Georgia has already floated), and a kitchen sink of other accusations.

There were claims of voter fraud in New Hampshire in 2016, which ended up being a silly assertion that college students (who, it turned out, had legally registered and voted in the state) had been "bused in" to vote for Clinton. Expect more of those types of claims. And if Tennessee's Republican nominee to replace the useless Bob Corker loses, we can be sure that somehow Republicans will blame it on the tornadoes that hit there this morning.

It is not that Democrats would never challenge election irregularities, it is just that they have always accepted defeat when confronted with it, as Al Gore did in 2000. Republicans will fight until the bitter end and beyond, which means that we will at the very least soon be tracking a slew of spurious challenges that will muddy the waters at least until the new Congress is supposed to be sworn in.

Krugman goes on to say that "if and when a Democratic House tries to exercise its powers, you can be
sure it will be met with defiance, never mind what the Constitution says." This will surely include flat refusals to respond to congressional subpoenas, and it is also likely to include all kinds of abuses of executives powers.

Moreover, even if Republicans lose both houses of Congress today, they have an entire lame duck session in which to wreak havoc. Many readers might recall that Election Day 2016 included the good news that a "bathroom bill"-obsessed Republican lost the governor's race in North Carolina. The heavily gerrymandered state legislature quickly responded by stripping the governor's office of many of its most important powers; and because the Democrats had also won a majority in the state Supreme Court, the legislature stripped it of jurisdiction in some key areas of the law. Professor Dorf offered a helpful discussion of the federal constitutional issues raised by those actions.

What could Republicans at the federal level do on their way out the door? Consider Trump's never-released tax returns, which Democrats are hoping to pry loose as soon as they have regained some power. They would rely on section 6103(f)(1)
of the Internal Revenue Code, which allows the chair of the House Ways and Means
Committee to order the Secretary of the Treasury to "furnish such committee with any
return or return information specified in [the chair's] request."

Again, one possibility is that Treasury Secretary Steve Mnuchin could simply refuse to comply with the committee chair's request. But why stop there? I predict that the Republicans in the lame-duck session will pass the Presidential Privacy Protection Act, which Trump will sign in a triumphant campaign-style ceremony. That Act will repeal 6103(f)(1) and any other statutory means by which Democrats might legally compel Trump to provide documents, and it will add affirmative defenses to all such requests. For good measure, they will give the Supreme Court original and final jurisdiction over all such measures.

This is only the beginning of what Republicans will surely try to pull off if they lose today. We do not know how dead we will be in the short run, but even the best outcome will not feel much like a healthy life.

Notwithstanding all of this doom and gloom, I wish all Dorf on Law readers a ...

5 comments:

At 11:30 p.m. Trump has won. Yes, the partisan hacks at MSNBC are breaking their arms patting themselves on the back about the House, but the truth is Trump took his racist messge to Florida, Georgia, Ohio, Missouri, Texas and the racists came out and voted for the Republicans.

The nation is not ready to cede control from the white establishment, and may never be ready.

The House was basic sanity but needed more. Multiple races were longshots but needed to win one or two of them. The opponents were were trolls and the candidates in most cases - minus a couple Senate races - impressive. So, yes, I am not glad. I'm relieved and the power obtained including in NY needs to be used. But, it's depressing and disgusting some of these people won.

I see that Stacey Abrams did not concede. Good for you -- even if she loses, the win for the troll won't be legitimate given his actions.

The House win is not nothing -- a charm there is that it includes places like Oklahoma so there is a nation-wide nature to the whole thing. The Senate was tough though I still find the number of losses depressing especially since we are dealing with some horrible pols here. Sen. Marsha Blackburn? It's TN, but come on.

NY is fully blue, so locally that's nice. There was also some notable ballot measures including regarding felony disenfrancisement. Since that very well probably gave Bush the presidency and in 2020 we can have another squeaker there, that can be big.